Opinion
112,666.
05-29-2015
STATE of Kansas, Appellee, v. Ricky L. JONES, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Ricky L. Jones appeals the district court's decision revoking his probation and ordering him to serve a modified prison sentence. We granted Jones' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State filed a response and requested that the district court's judgment be affirmed.
On July 28, 2011, Jones pled guilty to two counts of vehicular burglary, one count of felony theft, and one count of misdemeanor theft. On February 2, 2012, the district court imposed a controlling sentence of 18 months' imprisonment but granted probation with community corrections for 12 months. Jones did not appeal his sentence.
On February 1, 2013, the district court filed an order to appear indicating that Jones had failed to pay his restitution as directed. On February 11, 2013, Jones signed an order in which he voluntarily extended his term of probation by 12 months.
On October 9, 2013, Jones stipulated to violating his probation by consuming alcohol. The district court extended Jones' probation for 12 months from the date of the hearing. On March 27, 2014, Jones stipulated to violating his probation by committing disorderly conduct, patronizing a bar, consuming alcohol, failing to pay court costs, and failing to complete community service hours. The district court again extended Jones' probation for 12 months from the date of the hearing and ordered him to complete a residential alcohol treatment program.
On August 14, 2014, Jones stipulated to violating his probation by consuming alcohol and failing to remain at the residential community corrections center as directed. The later violation resulted in an aggravated escape from custody conviction in a separate case. The district court revoked Jones' probation and ordered him to serve a modified sentence of 12 months' imprisonment. Jones timely appealed from that order.
On appeal, Jones acknowledges that the decision to revoke probation rests within the district court's sound discretion. However, Jones points out that by the time the district court revoked his probation, he had served approximately 2 1/2 years on what initially was a 12–month term of probation. Jones points out that he almost completed his initial 12–month term of probation, failing only to pay his criminal restitution order in full. Given those circumstances, Jones contends that the district court abused its discretion by revoking his probation.
Probation from service of a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege, not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a violation of the conditions of probation, probation revocation is within the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). The party asserting the district court abused its discretion bears the burden of showing such abuse of discretion. State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Here, the district court gave Jones numerous opportunities to successfully complete his probation. Even after Jones violated the conditions of his probation on multiple occasions, the district court showed leniency by reducing his prison sentence to 12 months. The district court's decision to revoke Jones' probation was not arbitrary, fanciful, or unreasonable, and the decision was not based on an error of law or fact. See Ward, 292 Kan. at 550. Thus, we conclude the district court did not abuse its discretion in revoking Jones' probation and ordering him to serve a modified prison sentence.
Affirmed.